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Tribunal confirms that foreign law must be established by expert evidence: Hussein and another (status of passports: foreign law) [2020] UKUT 00250 (IAC) - Clarendon Park Chambers

In this appeal the Upper Tribunal (UT) was asked to determine whether an appellant with a Tanzanian passport was in fact a national of Somalia and not a national of Tanzania. In determining this issue, the UT gave guidance as to (1) the proper approach in cases such as this, (2) the usefulness of a passport in assessing nationality and (3) the proper approach to issues concerning foreign law. To access the judgement please click here

The headnote reads as follows:

  1. A person who holds a genuine passport, apparently issued to him, and not falsified or altered, has to be regarded as a national of the State that issued the passport.
  1. The burden of proving the contrary lies on the claimant in an asylum case. 
  1. Foreign law (including nationality law) is a matter of evidence, to be proved by expert evidence directed specifically to the point in issue.

Background:

In this case the appellant argued that from the outset Tanzanian nationality law did not permit him to acquire Tanzanian nationality, and that he was in fact a Somali national who had managed to obtain Tanzanian nationality surreptitiously.

The appellant was born in Somalia but entered the United Kingdom using a Tanzanian passport in 2018. He claimed that he was not entitled to the Tanzanian passport and as such Somalia should have been considered as his country of return.

Over the course of time he had obtained two Tanzanian passports, the first was issued in 2005 and the second issued in 2017 (he entered the UK using this passport). The appellant claimed that the passports were obtained by paying money to members of the Khoja Shiah Community whilst he was in Kenya.

The first passport was used to travel from Kenya to Dubai and back to Kenya. Thereafter, he used the second passport to travel from Kenya to the UK for a visit in 2018, then returning to Kenya before finally returning to the UK in December 2018. He entered the UK on a visit visa issued by the Home Office on the basis that he was a Tanzanian national.

The appellant made an asylum and Article 8 ECHR claim which was refused by the SSHD. He appealed and the claim was dismissed by the FtT, with the judge concluding that the appellant was not credible as he had fabricated important parts of his account. The FtT concluded that he was a national of Tanzania.

He appealed against this determination to the UT and was granted permission on the point relating to his nationality. The appellant did not challenge the Judge’s primary conclusions as to credibility and fact.

Relevant points of note from the judgement:

  1. The passport had been seen and inspected on at least 10 occasions on his entry and exist through international airports, and twice by UK entry clearance officers. There was no good reason to believe his claim that the document was not a genuine document. (Para 7).
  2. Foreign law is a matter of fact and must be proved by evidence. It is not sufficient to simply produce legislation and ask the Tribunal to interpret and apply the legislation. The legislation alone does not address the interpretation and application of it in the relevant country. Foreign law needs to be proved by expert evidence directed precisely to the questions under consideration, so that the Tribunal can reach an informed view. (Para 9).
  3. There is no presumption of the continuance of nationality. A person who shows that he has a particular nationality at birth may not be challenged about having that nationality. If however, there is evidence of a different nationality the matter has to be determined on the evidence and in an asylum claim the burden of proof rests on the claimant. (Para 10).
  4. Passports are internationally recognised as evidence of nationality constituting an authority by one State to another. That authority makes demands on the basis that the individual named in the passport is their national and entitled to be regarded as their national. (Para 11).
  5. Possession of a passport creates a prima facie presumption that the holder is a national of the country of issue, reflecting the UNCHR Handbook. (Para 12)
  6. A document detected as deceptive will not have the effect of a genuine passport. (Para 13).

Outcome in this claim:

The UT was not satisfied with the appellant’s arguments, particularly due to the lack of expert evidence relating to Tanzanian nationality law. The Tribunal were clearly not prepared to interpret or consider foreign law without expert evidence. It is not surprising that the UT took this approach as it echoes the guidance given by Mr Ockleton, sitting as a deputy High Court Judge, in MK (A Child By Her Litigation Friend CAE) v The Secretary of State for the Home Department [2017] EWHC 1365 (Admin):

  1. The need to prove Indian law by evidence appeared to take Mr Burrett rather by surprise. He put what he said were the relevant and up-to-date provisions of the Citizenship Act 1955 (India) before me as an authority, photocopied from some unidentified compendium of statutes (the copy incorporates some amendments to the Act and a few comments). He asked me to read, interpret, and assess the impact of the Indian legislation as though it were English legislation. 

  2. I cannot do that. The court is deemed to know the whole of English law and the relevant principles of interpretation, but it knows nothing of Indian law save as may be revealed by evidence. That is obvious if the situation were to be reversed. An Indian judge who had before him three sections of an English statute, apparently updated at some unknown stage, unaccompanied by any subordinate legislation, any decided cases, any contextual information or any material showing how the provisions impacted in practice could not be expected to form an accurate view of the relevant part of the English legal order. That is why it is normally necessary to have not merely evidence, but expert evidence, to prove foreign law.

A particular issue for this Appellant was that the adverse credibility findings made by the FtT were left unchallenged and therefore the UT were bound by those findings. Unfortunately for him, the adverse credibility findings made by the FtT spilled over into the UT’s assessment of the credibility of his account as to how he had obtained the Tanzanian passports.

The UT concluded that the FtT Judge was bound to reach the conclusion on the evidence before him, and that the appellant was a Tanzanian national. The asylum and Article 8 ECHR claims were dismissed.

Conclusion:

This appellant was clearly hampered by the negative credibility findings at the FtT and the lack of any expert evidence to support his claim.

An interesting point for consideration is perhaps how the “boomerang of proof” concept (see SM and Qadir v Secretary of State for the Home Department (ETS – Evidence – Burden of Proof) [2016] UKUT 00229 (IAC)) would operate in this type of claim.

The burden of proof rests on the Appellant. An experts report adduced by the Appellant would discharge the evidential burden on him/her. The evidential burden would then shift to the SSHD. If the SSHD failed to produce any expert evidence to counter the appellant’s expert evidence it is difficult to see the basis upon which the FtT could reject the Appellant’s case as to the operation of foreign law; unless the expert evidence was so poor it could not be relied upon.

It is doubtful that the SSHD would provide such evidence before the FtT and would likely rely upon reducing reliance on the report and relying on the fact that the appellant possessed a passport showing, prima facie, he was a national of another country. In those circumstances the quality of the experts report would be decisive.

There would appear to be nothing stopping this Appellant from advancing a fresh claim with expert evidence. If that expert evidence is robust it might well be that he could succeed in a fresh claim notwithstanding his failure to succeed in these appeal proceedings.

Clarendon Park Chambers is able to receive instructions directly from members of the public under the direct access scheme, as well as from solicitors and other professional clients. Enquiries can be made here.

 

Sheraaz Hingora

Sheraaz Hingora

Sheraaz Hingora is a Barrister specialising in Family law, Immigration, Human Rights and unlawful detention matters at Clarendon Park Chambers.

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